LAWRENCE J. O'NEILL, Chief District Judge.
Before the Court is Petitioner Justo Mata Bustos's ("Petitioner" or "Bustos") motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, filed on June 22, 2016 (ECF No. 63). The Government filed its opposition on August 3, 2016 (ECF No. 70), and Petitioner filed a reply on September 30, 2016 (ECF No. 71). Having considered the parties' briefing and the record in this case, the Court GRANTS Petitioner's motion.
On October 8, 2009, Petitioner was sentenced to a total term of 171 months imprisonment after pleading guilty to two counts on a three-count indictment: 87 months for Count 2, kidnapping, in violation of 18 U.S.C. § 1201(a)(1), to be served consecutively with 84 months for Count 3, brandishing a firearm during a crime of violence, under 18 U.S.C. § 924(c)(1)(A). ECF Nos. 49 & 50. At sentencing, the Court adopted the finding in the Presentence Report ("PSR") that Petitioner's total offense level was 29 (after a three-point adjustment for acceptance of responsibility from a base offense level of 32). PSR ¶ 53. With a criminal history category of I, the Guidelines range for Petitioner was 87 to 108 months, to run consecutively with an additional term of 84 months, pursuant to 18 U.S.C. § 924(c)(1)(A). See id. On October 26, 2009, the Court entered a judgment sentencing Petitioner to 171 months in prison. ECF No. 50.
Section 2255 provides four grounds upon which a sentencing court may grant relief to a petitioning in-custody defendant:
28 U.S.C. § 2255(a). Generally, it is only a narrow range of claims that fall within the scope of § 2255. United States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981). The alleged error of law must be "a fundamental defect which inherently results in a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)).
Pursuant to the Armed Career Criminal Act ("ACCA"), a defendant must be sentenced to a mandatory minimum of 15 years to life in custody if he has three prior convictions for "a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). The ACCA defines "violent felony" as any crime punishable by imprisonment for a term exceeding one year that:
18 U.S.C. § 924(e)(2)(B) (emphasis added). Courts generally refer to the first clause, § 924(e)(2)(B)(i), as the "elements clause"; the first part of the disjunctive statement in (ii) as the "enumerated offenses clause"; and its second part (starting with "or otherwise") as the "residual clause." Johnson v. United States, 135 S.Ct. 2551, 2556-57, 2563 (2015) ("Johnson II"); United States v. Lee, 821 F.3d 1124, 1126 (9th Cir. 2016).
In Johnson II, the Supreme Court held that "imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process," on the basis that "the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges." 135 S. Ct. at 2557, 2563. "Two features of the residual clause conspire to make it unconstitutionally vague." Id. at 2557. First, "the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime" by "t[ying] the judicial assessment of risk to a judicially imagined `ordinary case' of a crime, not to real-world facts or statutory elements." Id. Second, "[b]y combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates." Id. at 2558.
Recently, the Supreme Court held that its decision in Johnson II announced a new substantive rule that applies retroactively to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016). "By striking down the residual clause for vagueness, [Johnson II] changed the substantive reach of the Armed Career Criminal Act, altering the `range of conduct or the class of persons that the [Act] punishes." Id. at 1265 (quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2004)). As a result, defendants sentenced pursuant to the ACCA residual clause can collaterally attack their sentences as unconstitutional under § 2255. See, e.g., United States v. Heflin, ___ F. Supp. 3d ___, 2016 WL 3906895 (E.D. Cal. July 18, 2016).
18 U.S.C. § 924(c)(1)(A) provides, inter alia, that any person who in relation to any "crime of violence" uses or carries a firearm, shall in addition to the punishment provided for such "crime of violence," be sentenced to a term of imprisonment of not less than five years, to run consecutively with the punishment for the underlying "crime of violence." If a firearm is brandished in the course of committing the "crime of violence," the consecutive term of imprisonment shall be not less than seven years (84 months). 18 U.S.C. § 924(c)(1)(A)(ii). If a firearm is discharged, the consecutive term of imprisonment shall be not less than ten years. Id. § 924(c)(1)(C)(A)(iii).
For purposes of 18 U.S.C. § 924(c)(1)(A), a "crime of violence" is defined as an offense that is a felony and —
18 U.S.C. § 924(c)(3). "Courts generally refer to the `(a)' clause of section 924(c)(3) as the `force clause' and to the `(b)' clause of section 924(c)(3) as the `residual clause.'" United States v. Bell, 153 F.Supp.3d 906, 910 (N.D. Cal. 2016).
Petitioner challenges his sentence on the basis that kidnapping, in violation of 18 U.S.C. § 1201(a)(1), can no longer be deemed a "crime of violence" under § 924(c)'s residual clause, in light of the Supreme Court's decision in Johnson II, 135 S.Ct. at 2563 (2015) that the residual clause of the ACCA is unconstitutionally vague. ECF No. 63 at 8.
In its opposition, the Government sets forth several arguments as to why Petitioner is not eligible for relief under § 2255. ECF No. 70. The Government's main argument is that Johnson II did not invalidate the residual clause of § 924(c)(3) and that a § 1201(a)(1) conviction is therefore still a "crime of violence" for purposes of § 924(c). Id. at 8. In support of this argument, the Government points to various distinctions between the residual clause of the ACCA and the § 924(c)(3) residual clause. Id. at 8-14. The Government further argues: (1) that a § 1201(a)(1) conviction is a crime of violence under the "force clause" contained in § 924(c)(3)(A), id. at 3-6; (2) that the categorical approach is unnecessary for § 924(c) purposes, id. at 15-17;(3) that Dimaya does not apply to § 924(c)(3), id., at 17-18; and (4) that Petitioner's motion is time-barred, id. at 18-19.
The foundational issue in this case is the applicability of Johnson II to the § 924(c)(3) residual clause—and more specifically, whether Dimaya compels the Court to find that Johnson II invalidates the § 924(c)(3) residual clause. In Dimaya, an immigration case that concerned whether a non-citizen's state law conviction rendered him removable for being convicted of an "aggravated felony," the Ninth Circuit considered whether language similar to the ACCA's residual clause incorporated into the definition of aggravated felony at 18 U.S.C. § 16(b) was unconstitutionally vague after Johnson II. 803 F.3d at 1111. Dimaya began the relevant analysis by noting the similarities between 18 U.S.C. § 16(b) and the ACCA's residual clause. Under 18 U.S.C. § 16(b), a crime of violence is an "offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." (emphasis added). "The language in the ACCA that [Johnson II] held unconstitutional is similar. The ACCA provision defined a `violent felony' as `any crime punishable by imprisonment for a term exceeding one year [i.e., a felony] . . . that . . . involves conduct that presents a serious potential risk of physical injury to another." Dimaya, 803 F.3d at 1114 (quoting 18 U.S.C. 924(e)(2)(B)(ii) (emphasis in original)). After analyzing 18 U.S.C. § 16(b) in light of the Supreme Court's reasoning in Johnson II, the Dimaya court concluded as follows:
Id. at 1120.
On this basis, Petitioner urges the Court to find that the § 924(c)(3) residual clause is likewise unconstitutionally vague under Johnson II. ECF No. 63 at 9. Upon review of Dimaya and all of the district courts in this circuit applying Dimaya to the § 924(c)(3) residual clause, and the fact that the language that Dimaya found to be unconstitutional is identical to the § 924(c)(3) residual clause, the Court agrees with Petitioner. Relying on Dimaya, three district courts in this circuit have found that Johnson II renders the § 924(c)(3) residual clause unconstitutional, in the context of ruling on defendants' motions to dismiss certain charges in their indictments. Bell, 158 F. Supp. 3d at 922-23 (finding that under Johnson II, the § 924(c)(3) residual clause "cannot stand" because like the ACCA residual clause, it requires the application of the categorical approach, and "the differences in the language used in the ACCA residual clause versus the § 924(c)(3) residual clause are not material insofar as the reasoning in Johnson II is concerned."); United States v. Lattanaphom, 159 F.Supp.3d 1157, 1164 (E.D. Cal. 2016) (same); United States v. Baires-Reyes, ___ F. Supp. 3d ___, 2016 WL 3163049 (N.D. Cal. June 7, 2016) (same). At least one district court has applied the reasoning of Dimaya to find that § 924(c) is unconstitutional in the context of a § 2255 motion. United States v. Shumilo, No. CV 16-4412-GW, 2016 WL 6302524, at *7 (C.D. Cal. Oct. 24, 2016) ("the Court would find that [Johnson II] applies to the residual clause in § 924(c), thereby invalidating it"). In each of these cases, courts have emphasized that both the ACCA residual clause at issue in Johnson II and the § 924(c)(3) residual clause require the application of the categorical approach
The Government's arguments to the contrary are unavailing, as they have all been squarely foreclosed by Dimaya, which is binding
802 F.3d at 1118. Second, the Government argues that § 924(c)(3)(B) is narrower than the ACCA's residual clause, in that § 924(c)(3)(B)'s "focus is limited to the defendant's potential use of force during his commission of the offense," while the ACCA's residual clause "looks broadly to whether injury will somehow be caused to another person during—or even after—the offense." ECF No. 70 at 11-13. However, in Dimaya, the Ninth Circuit expressed doubt that this difference in phrasing "actually creates a distinction between [the ACCA residual clause and the language in the residual clauses of § 16(b) and § 924(c)(3)]." 803 F.3d at 1118. Moreover, the defect that renders the ACCA's residual clause unconstitutionally vague—that it combines the "indeterminate inquiry of `how to measure the risk posed by a crime' in the ordinary case with the `indeterminacy about how much risk it takes for the crime to qualify as a violent felony'" applies equally "whether the inquiry considers the risk of violence posed by the commission and the aftereffects of a crime [as with the ACCA residual clause], or whether it is limited to consideration of the risk of violence posed by acts necessary to satisfy the elements of the offense [as in the § 924(c)(3) residual clause]." Id. at 1118-19. Third, the Government argues that the Supreme Court has had less difficulty interpreting the § 924(c)(3) residual clause than it has had with the ACCA residual clause. ECF No. 70 at 13-14. As to this point, Dimaya noted "[t]hat the Supreme Court has decided more [ACCA] residual clause cases than § 16(b) cases, however, does not indicate that it believes the latter clause to be any more capable of consistent application. We can discern very little regarding the merits of an issue from the composition of the Supreme Court's docket." 803 F.3d at 1119.
The Court acknowledges that a footnote in Dimaya clarifies that its holding "does not reach the constitutionality of applications of 18 U.S.C. § 16(b) outside of [the immigration law context]," 803 F.3d at 1120 n. 17, there is a circuit split
The Government does not dispute that Johnson II announced a substantive rule, but argues that Johnson II is only retroactively applicable to ACCA cases on collateral review. ECF No. 70 at 19. This position, which the Government fails to support with any substantive analysis, is untenable, given the Supreme Court's explicit holding in Welch that Johnson II is a "substantive decision and so has retroactive effect under Teague
These cases also rely upon Reina-Rodriguez v. United States, 655 F.3d 1182, 1189 (9th Cir. 2011), in which the Ninth Circuit considered whether its earlier decision United States v. Grisel, 558 F.3d 844 (9th Cir. 2007), should apply retroactively. Grisel held that second-degree burglary under Oregon law was not categorically a crime of violence for the purposes of determining whether a sentencing enhancement should apply under the ACCA. 488 F.3d at 850-51. In Reina-Rodriguez, the Ninth Circuit found that Grisel was a substantive rule that therefore also applied retroactively in the context of the Sentencing Guidelines because it "altered the conduct that substantively qualified as burglary under the categorical approach." 655 F.3d at 1189. Because Reina-Rodriguez "did not distinguish between Grisel in the ACCA context and Grisel in the Guidelines context," the Ninth Circuit thereby implicitly found "that a rule that is substantive in the first context is substantive in the second context." Dean, 169 F. Supp. 3d at 1118.
The reasoning from Reina-Rodriguez is applicable here, and the Court agrees with Petitioner's argument that following Johnson II, a sentence under § 924(c)(1)(A) "operates the same way as an ACCA sentence," in that it "authorizes a mandatory minimum sentence that would otherwise be illegal to impose." ECF No. 63 at 15. In light of the Court's determination, supra, that Johnson II invalidated the § 924(c)(3) residual clause, Johnson II "changed the substantive reach" of the sentencing enhancements authorized by § 924(c)(1)(A), and therefore, the Court finds that Johnson II is a substantive rule that applies retroactively in this context. See Welch, 136 S.Ct. at 1265; Reina-Rodriguez, 655 F.3d at 1189-1990; see also Schriro, 542 U.S. at 351 ("New substantive rules generally apply retroactively"). Thus, because Johnson II announced a new substantive rule retroactively applicable to § 924(c)(1)(A) cases on collateral review, and because Petitioner filed his § 2255 motion within one year of the date Johnson II was decided, Petitioner's motion is timely under § 2255(3)(f).
Petitioner's originally imposed 171-month sentence was premised upon the classification of his § 1201(a)(1) conviction as a "crime of violence" under § 924(c)(3). ECF No. 50; see also 18 U.S.C. § 924(c)(1)(A). Because the Court has found that the § 924(c)(3) residual clause "can no longer mandate or authorize any sentence," see Welch, 136 S. Ct. at 1265, Petitioner's sentence can only stand if his § 1201(a) conviction qualifies as a crime of violence under § 924(c)(3)'s force clause. See, e.g., Bell, 158 F. Supp. 3d at 910-11. In Bell, a court in the Northern District of California confronted with the same type of inquiry, set forth the legal framework for doing so as follows:
158 F. Supp. 3d at 910-913.
Using this framework, the Court begins with the statutory language of 18 U.S.C. § 1201(a)(1), which provides, in relevant part:
18 U.S.C. § 1201(a)(1). The Court notes that to date, there is no caselaw that directly addresses whether a § 1201(a)(1) conviction is categorically a crime of violence under the § 924(c)(3) force or any other similarly-worded statute or sentencing provision.
Thus, at this juncture, the Court's task is to compare the elements of a § 1201(a) conviction with those of the § 924(c) force clause, and determine whether § 1201(a)(1) necessarily "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." See Descamps, 133 S. Ct. at 2283. "Distinguishing between elements and facts is [] central to the [categorical approach]'s operation." See Mathis v. United States, 136 S.Ct. 2243, 2248 (2016). "`Elements' are the `constituent parts' of a crime's legal definition—the things the `prosecution must prove to sustain a conviction.'" See id. (quoting Black's Law Dictionary 634 (10th ed. 2014)). There are three elements the Government must prove to convict a defendant of § 1201(a)(1): (1) the unlawful seizure, confinement, inveiglement, decoy, kidnapping, abduction, or carrying away of a victim; (2) holding that victim for ransom or reward or otherwise; (3) the willful transportation of that victim in interstate or foreign commerce, or the travel of the defendant in interstate or foreign commerce, or the defendant's use of mail or any means, facility, or instrumentality of interstate or foreign commerce during the course of the crime's commission. United States v. Bancalari, 110 F.3d 1425, 1428 (9th Cir. 1997). In this regard, the Court notes that each of the three elements in § 1201(a) "merely specif[y] diverse means of satisfying a single element of a single crime—or otherwise said, spells out various factual ways of committing some component of the offense—a jury need not find (nor a defendant admit) any particular item." Mathis, 136 S. Ct. at 2249. The first element is satisfied through various means: seizure, confinement, inveiglement, decoy, kidnapping, abduction, or carrying away. See United States v. Etsitty, 130 F.3d 420, 427 (9th Cir. 1997). The second element is satisfied through the defendant's holding of the victim for ransom or reward or otherwise. The third element is satisfied if the victim is transported in interstate commerce or if the defendant travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in the commission of the offense. Because § 1201(a)(1) presents a single set of elements that are satisfied through various means, rather than multiple alternative elements of functionally separate crimes, the Court finds that it is an indivisible statute such that the Court's inquiry is confined to the pure categorical approach. See Rendon, 764 F.3d at 1088. Under the categorical approach, the Court must "presume that the conviction `rested upon [nothing] more than the least of th[e] acts criminalized, and then determine whether even those acts are encompassed by [the § 924(c)(3) force clause]." Moncrieffe, 133 S. Ct. at 1684 (citing Johnson I, 559 U.S. at 137).
The Court now evaluates whether § 1201(a)(1) categorically falls within the § 924(c)(3) force clause. Given that the third element, relating to interstate commerce, has been found to "merely furnish[] the basis for the exercise of federal jurisdiction," rather than constitute a formal element of the crime, United States v. Napier, 518 F.3d 316, 319 (9th Cir. 1975), the Court's inquiry need only address the first two elements of § 1201(a)(1). As explained above, pursuant to the Supreme Court's decision in Johnson I, "physical force" for purposes of the § 924(c)(3) force clause must be "violent force—that is force capable of causing physical pain or injury to another person." See Dominguez-Maroyoqui, 748 F.3d at 921 (quoting Johnson I, 559 U.S. at 140); Rodriguez-Castellon, 733 F.3d at 854.
In regard to the first element, the Court notes that it may be satisfied without the use of physical, violent force, as contemplated by § 924(c)(3). While seizing, confining, or carrying a victim away could implicate the use of violent force, inveigling or decoying the victim do not. In Delgado-Hernandez v. Holder, the Ninth Circuit considered whether the full range of conduct covered by California's kidnapping statute, Cal. Penal Code. § 207(a), fell within the meaning of the force clause at 18 U.S.C. 16(a), which is identical to the § 924(c)(3) force clause. 697 F.3d at 1127. Cal. Penal Code § 207(a) provides that "every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, or detains or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping." In observing the plain text of this statute, Delgado-Hernandez concluded that "[b]ecause kidnapping under § 207(a) can be committed of `any means of instilling fear' instead of by force, § 207(a) does not include `the use of . . . physical force" as an element of the crime." 697 F.3d at 1127. Furthermore, the Delgado-Hernandez court observed that § 207(a) is "comparable" to § 1201(a), which it also described as lacking a "force requirement" because § 1201(a) also enumerates various means of satisfying its first element, not all of which require force. Id. at 1130. Therefore, Delgado-Hernandez`s holding that kidnapping under § 207(a) can be committed by "`any means of instilling fear" instead of by force, is applicable to § 1201(a)(1). See id. Similarly, in United States v. Sherbondy, the Ninth Circuit held that kidnapping under the Model Penal Code, which defines kidnapping as "unlawfully remov[ing] another from his place of residence or business" did not include violent physical force as an element because "removal of a person through trickery or deceit can be as unlawful as abduction at gunpoint." 865 F.2d 996, 1009 (9th Cir. 1988). Accordingly, it found that a statutory provision identical to the § 924(c)(3) force clause did not apply to that definition of kidnapping. Id. Delgado-Hernandez and Sherbondy support the Court's finding that the first element of § 1201(a)(1) need not require the use of violent, physical force.
Next, the Court turns to the second element and evaluates whether "holding for ransom, or reward, or otherwise" necessarily involves the use of violent, physical force. Both parties cite to Chatwin v. United States, 326 U.S. 455, 460 (1946), in which the Supreme Court held that for purposes of satisfying this element of federal kidnapping, "[t]he act of holding a kidnapped person for a proscribed purpose necessarily implies an unlawful physical or mental restraint for an appreciable period against the person's will and with a willful intent so to confine the victim." The Government's position is that under Chatwin's interpretation of the holding element, even if holding is accomplished through mental restraint, this will necessarily also entail the threat of physical force. ECF No. 70 at 4. Petitioner counters that the holding element can be satisfied without any threat of physical force, and that no circuit court has required proof beyond a reasonable doubt that a § 1201(a)(1) defendant used, attempted to use, or threatened the use of violent physical force to establish the holding element. ECF No. 71 at 12-14. Although there is support for both positions from courts outside this circuit, the Court agrees with Petitioner for two main reasons. First, the two published Ninth Circuit cases that have analyzed the elements of similarly-worded state kidnapping statutes and discussed § 1201(a)(1) in their dicta have discerned no force requirement in either the state statutes or in § 1201(a)(1). Delgado-Hernandez, as mentioned above, found no force requirement in California's kidnapping statute and in the course of its reasoning and discussion of other kidnapping statutes, stated that § 1201(a)(1) "has no force requirement." 697 F.3d at 1130. United States v. Chandler, the Ninth Circuit's most recent decision on the issue, found that Nevada's kidnapping statute, which it described as very similar to § 1201(a)(1), lacked a force requirement and in support of its reasoning, cited the finding in Delgado-Hernandez that § 1201(a)(1) does not have a force requirement. 743 F.3d 648, 656-67 (9th Cir. 2014).
Second, the confines of the categorical approach direct the Court to focus on the elements of the crime, and examine whether even the full range of acts encompassed by § 1201(a)(1) are within the reach of the § 924(c)(3) force clause. Moncrieffe, 133 S. Ct. at 1694; see also Shepard v. United States, 544 U.S. 13, 24 (2004) (a predicate offense is only a categorical match with the generic offense if a conviction of the predicate offense "necessarily" involved facts equating to the generic offense). The cases cited by Petitioner demonstrate that courts have found the holding element satisfied without the use or threat of physical violent force. ECF No. 71 at 12-14. For instance, although both parties cite to United States v. Lentz, 383 F.3d 191 (4th Cir. 2004), the Court finds that Lentz supports Petitioner's position in that the Lentz court viewed this second element as discrete from any violence that occurred during the commission of the crime. In Lentz, the defendant and the victim had one child together. Id. at 195. The defendant "inveigled" the victim to his house by telling her to pick up their child there, and upon her arrival, killed her. Id. at 195-198. Following a jury trial, in which a jury found the defendant guilty of § 1201(a), the district court granted the defendant's motion for judgment of acquittal, and the government filed a notice of appeal. Id. at 198-99. On appeal, the defendant argued that the government had failed to prove the holding element because "there was no evidence that [he] exerted any physical or mental force sufficient to effect a restraint upon her movements during the trip," in other words, arguing that the victim "was at all times `perfectly free' to return to her home." Id. at 201. The Fourth Circuit concluded that "there was a logical and supporting evidentiary basis for the jury to conclude that [the victim] was `held' by the defendant after she arrived at his house but before the fatal wounds were inflicted," because there was sufficient circumstantial evidence that after she arrived at the defendant's house, the defendant "either physically forced or lured her inside or otherwise confined her against her will for an appreciable period of time in order to accomplish the purpose of the seizure." Id. at 203 (emphasis added). Reasoning that although "the defense argues correctly that there is no direct evidence as to exactly what events occurred in the house preceding [the victim]'s murder," the Fourth Circuit found that the government's inability to produce direct evidence on this issue is not fatal to its case," because there was sufficient evidence for the jury to find that the defendant had "held" the victim against her will. Id. Because the Fourth Circuit held that circumstantial evidence that the victim was either "lured" or "otherwise confined against her will" satisfied the holding element, Lentz demonstrates that the second element does not require the use or threat of violent, physical force and therefore does not implicate the § 924(c)(3) force clause under the categorical approach. The approach in Lentz to the second element is echoed by two other courts, both of whom appear to analyze the holding element separately even in instances where the facts indicated that the defendants ultimately committed violent acts against the victims. See, e.g., United States v. Boone, 959 F.2d 1550, 1556 (11th Cir. 2002) ("the mere fact that the kidnapper was not required to physically hold his victim prior to the crossing of state lines, thereby sparing himself the effort of using forcible action to accomplish the kidnapping, does not take his conduct outside of the statute"); United States v. Hughes, 716 F.2d 234, 239 (4th Cir. 1983) ("By inducing his victim by misrepresentations to enter his vehicle and to accompany him, and knowing that the victim's belief as to their purpose and destination is different from his actual illicit purpose, the kidnapper has interfered with, and exercised control over, her actions. We find this conduct sufficient to satisfy the `involuntariness of seizure and detention' requirement of Chatwin.").
Based on the foregoing, the Court concludes that § 1201(a)(1) cannot serve as a predicate offense for § 924(c)(1)(A) because it does not categorically qualify as a crime of violence under the force clause of § 924(c)(3). See Shepard, 544 U.S. at 24. Therefore, Petitioner succeeds in showing that his sentence was imposed in violation of the Constitution, and the Court GRANTS his § 2255 petition and VACATES his sentence.
Petitioner's conviction for kidnapping under § 1201(a)(1) exists, but does not qualify as crime of violence under § 924(c)(3) for the purposes of the § 924(c)(1)(A) sentencing enhancement provision. Because there is no longer a crime of violence supporting Petitioner's § 924(c)(1)(A) sentencing enhancement, Petitioner is entitled to habeas relief under 28 U.S.C. § 2255(a).
Accordingly,
IT IS SO ORDERED.
